Oracle v Google: APIs are copyrightable

After nearly 10 years of litigation, the U.S. Supreme Court will finally address the landmark copyright questions posed in Oracle's copyright lawsuit against Google.

In case you have been buried under a rock for the last decade, the Oracle v. Google litigation is one of the most significant copyright cases the software industry has ever seen. The litigation started in August 2010, when Oracle sued Google in the Northern District of California for copyright and patent infringement. Oracle argued that Google infringed on its application programming interfaces, or APIs, in early versions of its Android operating system. Google admitted as much, but argued that the APIs were not copyrightable, and even if they were, the fair use doctrine protected Google.

The trial court proceedings resolved the patent phase of the litigation (the jury found no infringement), but sparked an intense debate on the copyright and fair use claims and the copyright components of the litigation have been hotly contested since then. The U.S. Court of Appeals for the Federal Circuit has twice found that APIs are copyrightable, and that Google's specific use of Oracle's APIs did not qualify for a fair use defense. But Google continued to fight, and the Supreme Court eventually granted certorari on the specific questions regarding the copyrightability of APIs and related fair use. Now, however, we are in the endgame phase of this long and drawn out copyright battle, and an interesting dichotomy of corporate interests has emerged.

As expected, the Supreme Court proceedings have drawn worldwide interest and the parties have successfully lined up armies of amicus curiae in support of their competing views. I had the privilege of joining in the fray. I represented Ralph Oman as an amicus supporting Oracle, just as I did in the Federal Circuit.

Perhaps unique among the myriad amici, Oman offers an interesting perspective. Oman was the Register of Copyrights in the 1980s and 1990s, leading the U.S. on copyright policy and proposed legislation. He had previously been closely involved in passing the Copyright Act of 1976. Suffice it to say that Oman was an architect of U.S. copyright law as it concerns the essential nature of computer code and digital technology.

A central focus of Oman's amicus filing is the Copyright Act. He argues that the act squarely controls. He encourages the court to ignore the policy arguments raised by Google, and to instead focus on the expressive elements of the computer software. Oman posits that these elements are protected by copyright just like any other creative work and that the same fair use doctrine should apply. This is especially true considering that in 1980, Congress amended the Copyright Act to include computer software. And during that process, Congress considered many early iterations of Google's policy arguments, and rejected them in favor of copyright protections for computer software, just like any other copyrighted work.

Aside from the Copyright Act, Oman also focuses on functionality, perhaps more so than the other amici. Specifically, Oman argues that the functionality of Oracle's APIs should not bar copyright protection because copyright protects Oracle's particular expression. Moreover, because Oracle could have chosen one of many different modes of expression for its APIs, Google should not be able to invoke the merger doctrine. This boils down to an argument about pure, unfettered competition -- Oman argues that Google could have written its own software code to achieve the same results. And as Oman points out, this same argument should bar Google's fair use defense -- again, Google could have simply built its own software instead of taking Oracle's.

Oman's arguments concerning competition in the software industry accord with other amici who have filed in support of Oracle. Those amici have all broadly focused on the importance of copyright protection in the software industry. A diverse coalition of entities and individuals in technology, government, the arts, and academia have supported Oracle, seeking to defend copyright protection and focus on Google's alleged theft of more than 11,000 lines of Oracle's original code.

Unsurprisingly, however, the argument is not one-sided. The list of amici supporting Google is even longer than the list supporting Oracle. And while quantity might not necessarily mean quality in the court's eyes, the Google coalition presents arguments worth exploring. Like Oman and his fellow Oracle amici, the pro-Googlers tend to focus on interests broader than simply Google and Oracle. One prevalent argument favored by open source and third-party developers is that a ruling for Oracle would allow companies to control -- and perhaps suffocate -- their reliance on basic software interfaces. In addition to third party developers, a range of institutional amici have further cited the importance of interoperability in the development and use of software in supporting Google. Interestingly, these amici include Google competitors like IBM, Microsoft and others, suggesting that in some cases, policy arguments may trump competitive concerns.

It may well be that the Supreme Court does not have the final word here. For example, a ruling for Oracle might require future proceedings regarding Oracle's damages. Nevertheless, copyright practitioners worldwide will be focused on the Supreme Court on March 24, when oral argument in the case will finally be heard. 